United States District Court, E.D. North Carolina, Western Division
ROSE LORENZO, on behalf of herself and all others similarly situated, Plaintiff,
PRIME COMMUNICATIONS, L.P., a Texas General Partnership, Defendant.
MALCOLM J. HOWARD, SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on defendant's motion to
decertify or amend the Rule 23 class previously certified in
this action. On January 31, 2018, United States Magistrate
Judge Kimberly A. Swank filed a memorandum and recommendation
(M&R) recommending that Prime's motion [DE #310] to
decertify the Rule 23 class be denied and Prime's motion
to amend the Rule 23 class be granted. Defendant objected to
the M&R, and plaintiffs responded. The parties also
filed, as directed by Magistrate Judge Swank, a joint notice
regarding a proposed amendment to the class definition.
to Rule 72(b) of the Federal Rules of Civil Procedure and 28
U.S.C. § 636, a district judge "must determine de
novo any part of the magistrate judge's disposition that
has been properly objected to." See also Local
Civil Rule 72.4, EDNC.
Section 636(b)(1) does not countenance a form of generalized
objection to cover all issues addressed by the magistrate
judge; it contemplates that a party's objection to a
magistrate judge's report be specific and particularized,
as the statute directs the district court to review only
"those portions of the report or
specified proposed findings or recommendations to
which objection is made."
United States v. Midgette, 478 F.3d 616, 621 (4th
Cir. 2007) (citing 28 U.S.C. § 636(b)(1).)
objects to the M&R arguing that the Magistrate Judge (1)
failed to address the elements of Federal Rule of Civil
Procedure 23(b)(3), (2) incorrectly concluded that Rule
23's commonality and typicality standards have been met
by oversimplifying the rigorous analysis of commonality and
typicality required in this matter, (3) failed to consider
the merits of plaintiff's North Carolina Wage and Hour
Act "NCWHA" claims as part of its class
decertification decision, (4) should not have relied on the
passage of almost four years since certification of the class
as part of her reasoning for recommending denial; (5) and
failed to address defendant's argument that plaintiff is
not an adequate class representative. Defendant also notes it
incorporates its prior arguments from its prior notice of
objections [DE #475].
court finds these objections are without merit. Most of the
objections are conclusory. The court notes that class
certification questions are matters left to the sound
discretion of the court. Amchen Prods., Inc. v.
Windsor, 521 U.S. 591, 630 (1997) .
defendant's objection that the magistrate judge failed to
address the requirements of Rule 23(b), the M&R
specifically states that the court previously certified the
class based on Rule 23(b)(3) because "questions of law
or fact common to class members predominate over any
questions affecting only individual members and ... a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy." Fed.R.Civ.P.
23(b)(3). Moreover, the court finds that the common questions
of law and fact detailed with examples in the M&R address
the proper finding that this class meets the requirements of
Rule 23(b)(3), specifically the subscriber management fee
issues, the chargeback policy and wage deduction policy
issues, and advance notice issues. Furthermore,
defendant's arguments regarding the lack of a trial plan
are without merit. There is no requirement for a trial plan
prior to certifying a class. Therefore, this objection is
defendant objects to the magistrate judge's finding that
Rule 23's commonality and typicality standards have been
met. As stated in the prior paragraph, there exist common
questions of law that satisfy the commonality requirement and
as plaintiff Lorenzo's claims are typical of the claims
of the class, that requirement has been met as well. While no
doubt there may be some individual damage calculations
required, this does not negate the commonality or typicality
finding, and in fact is common in class actions. As stated by
the magistrate judge, Lorenzo's claims are not particular
to her but rather are shared by the class.
next objection argues it was error for the magistrate judge
to not consider the merits of the NCWHA claims in the motion
to decertify. However, a court should not engage in
"free-ranging merits inquiries." Amgen, Inc. v.
Connecticut Ret. Plans and Tr. Funds, 568 U.S. 455, 466
(2013). Instead, the merits are only relevant for the purpose
of determining whether the Rule 23 requirements are
satisfied. Id. This conclusory objection is wholly
without merit as the magistrate judge properly considered the
merits to the extent required by Rule 23 and the caselaw.
to Prime's fourth objection, the court finds the
magistrate judge also correctly considered the passage of
time since the original certification of the class as a
factor in considering whether to decertify. See,
e.g., Hart v. Louisiana-Pacific Corp., No.
2:08-CV-47-BO, 2013 WL 12143171, at *1 (E.D. N.C. Mar. 29,
fifth objection is simply two sentences-arguing that because
Lorenzo's claims are not typical, she is also not a
proper class representative. Having previously found that her
claims are typical, this objection is without merit.
defendant incorporates its prior notice of objections.
However, these objections were conclusory and the court finds
any additional objections contained therein to be without
found the objections to be without merit, the court hereby
finds the magistrate judge's recommendation to deny the
motion to decertify to be proper. A full and careful review
of the M&R and other documents of record convinces the
court that the recommendation of the magistrate judge is, in
all respects, in accordance with the ...